Notes on Burden of proof (S 101-111 of Evidence Act)

The word "burden of proof" has not been defined in Indian Evidence Act. Burden of proof  in simple words means responsibility to prove a fact in a case or obligation to prove a fact.

Principles of burden of proof are mentioned below:

a) Onus probandi means burden of proof. Generally a party who alleges affirmative has to prove it.

b) Factum probans is proving the fact.

The phrase"burden of proof" has two distinct meanings:

1) The burden of proof as a matter of law and pleading-The burden as it has been called of establishing a case. This burden rests upon the party whether plaintiff or defendant who substantially asserts the affirmative of the issue.It is fixed at the beginning of trial by statements of pleading, and it is settled as a question of law,remaining unchanged under any circumstances whatever.This rule is embodied in S 101.

2)The burden of proof as matter of adducing evidence - The burden of proof in this sense is always unstable,and may shift constantly throughout the trial.This aspect of burden of proof is contained in S 102.It lies at first on the party who would be unsuccessful if no evidence at all was given on either side.This being the  test,burden of proof cannot remain constant,but must shift as soon as he produces evidence which prima facie gives rise to a presumption in his favour.

Difference between burden of proof and onus of proof: Burden of proof lies on the person who has to prove a fact and  it never shifts,but onus of proof shifts.Such a shifting of onus is a continuous process in the evaluation of evidence.

Read important Judgments on Burden of proof : Click here

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Whether court can grant declaration of civil death of person who is missing for seven years?

In   the   light   of   the   above   discussion,   the   Court   below
committed serious error in law, which has resulted into miscarriage of
justice to the appellants, which must be corrected.    In that view of the
matter,   the   question   framed   by   me     above,   is     answered   in   the
affirmative.
10. To sum up, following order is inevitable.:­
ORDER
a) Second Appeal No.18/2016 is allowed.
b) Impugned judgment and decree dated 2.9.2015  passed by Joint
Civil Judge, Jr.Dn. Nagpur in R.C.S. No.376/2015 and judgment and
decree  dated  31.10.2015  passed by District Judge­8, Nagpur in Regular
Civil Appeal No.448/2015, both are set aside.
c) There shall be a decree  in terms of prayer clause (2) of the suit
which is reproduced below :­
(2) Declare   that   the   defendant   Shri   Abhay   s/o
Purushottam   Deshmukh as a dead person and   his
death is civil death   as he is missing from 16.3.2008

and issue death certificate.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT NAGPUR, NAGPUR.

SECOND APPEAL NO.  18/2016

 Sou. Swati   Abhay Deshmukh  v  Shri  Abhay   s/o Purushottam Deshmukh

 CORAM :     A.B.CHAUDHARI, J.
DATED :     26th  February, 2016

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Whether suit for declaration that person who is missing for seven years is dead is maintainable?

 This suit is filed by a wife against her husband for a declaration that the defendant, not having been heard of since February 1937, into be deemed to be dead.  The first difficulty that is raised by the present plaint is that it is a suit for a declaration and it cannot be entertained unless it falls within the scope of Section 42 of the Specific Relief Act. That section inter alia provides that any person entitled to any legal character may institute a suit against any person denying or interested to deny his title to such character, for a declaration that he is so entitled. The declaration sought in this suit is not a declaration of such a kind. The plaintiff does not claim to be entitled to any legal character nor can it be said that there is any person denying or interested to deny such character, because the plaintiff herself states that the plaintiff believes that the defendant is dead. Section 42, in my opinion, postulates the existence of a defendant who denies or is interested to deny the legal character. The possibility of his existence is, in my opinion, not sufficient. Secondly, apart from any statutory provision such as is made in the Matrimonial Causes Act, 1937, in England, I find it difficult to entertain a suit against a person who the plaintiff avers is dead and to proceed, as the plaintiff must seek leave to proceed hereafter, to serve the defendant by substituted service. I am therefore of the opinion that a suit of this nature is not competent.

Bombay High Court

Zena Gladys Freemantle vs Herbert Charles Freemantle on 20 July, 1949

Equivalent citations: (1950) 52 BOMLR 641

Bench: Tendolkar

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When family members of person missing for seven years can claim all service benefits of missing person?

  I am inclined to follow the           view taken by the

learned Judges in the decisions quoted above. In Indira's

case (supra), a learned Judge of this Court has held as

follows:


              ". . . . . There may be cases where the missing person
       may be dead or permanently disabled mentally or
       physically which may not come to the notice of the Army or
       the family.      Even in such cases also, the Army may be
       justified in declaring him a deserter but the position will
       continue only until expiry of seven years from the date of
       missing of the person when presumption of death is
       available under Section 108 of the Evidence Act.
       Therefore, as and when presumption of death is available
       under Section 108 of the Evidence Act, the whole position
       changes and the presumption of death supercedes the
       declaration of the person a deserter under Section 106 of
       the Army Act. Consequently the family members can claim
       all benefits as if the man is dead on the date of his missing.


       Since it is admitted that the petitioner's husband has not
       surfaced and could not be traced after 5.10.1995 in spite of
       effort to trace him by the Police at the request by the Army,
       the presumption of his death as on 5.10.1995 is available
       under Section 108 of the Evidence Act. Since petitioner's
       husband was admittedly sick and had undergone major
       surgery, the possibility of his death could not be ruled out.
       It is regularly reported in newspapers and media that many
       dead bodies surfacing here and there are all buried without
       anybody identifying such bodies. Going by the statement of
       the respondents, petitioner's husband should have been on
       his way from Bangalore to Military Hospital on the date of
       missing that is, 5.10.1995. Apart from the presumption of
       death, the circumstances do not suggest any chance of
       petitioner's husband deserting the Army towards the end of
       his career."


Of course, that is a case where the person missing was

declared as a deserter by the Army. Another learned Judge

of this Court in W.P(C) No. 24613/2006 applied the ratio of

that decision for granting compassionate employment to

the dependent of a person who was missing similarly. Of

course, there also was a First Information Report. But, I do

not think that registration or non-registration of a First

Information Report will             be fatal to the case of the

petitioner. The petitioner has reported the missing of her

husband to the police, the police had made investigation

pursuant thereto and             the police have issued          Ext.P1

certificate stating that despite investigation made in that

regard, the whereabouts of K.M. Samuel could not be

ascertained.        Once a complaint relating to missing of a

person is filed before the police, it is for the police to file a

First Information Report and do whatever is necessary. The

petitioner does not have any control regarding the same.


Therefore,      if a distinction is to be made in respect of

identical circumstances based on whether FIR has been

registered or not, it would result in injustice to the

petitioner for no fault of hers. I am of opinion that the ratio

of the decisions relied on by the petitioner would be equally

applicable to a case where a First Information Report has

not been registered also, if it is reasonably certain that the

person went missing and he has not been heard of for more

than seven years.      So, the disciplinary proceedings against

the petitioner's husband would hold good only for seven

years prescribed in Section 106 of the Indian Evidence Act

and    thereafter      what   would    be   applicable to  the

circumstances is Section 108 of the Indian Evidence Act.

That means if an employee went missing he has not heard

of for seven years notwithstanding the disciplinary

proceedings, the consequences of presumption             under

Section 108 of the Indian Evidence Act would follow,

meaning thereby that the legal heirs of the missing person

should be given all benefits presuming that that person is

dead and that the disciplinary proceedings were against a

dead person.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                              PRESENT:

                       MR.JUSTICE S.SIRI JAGAN

                      22ND DAY OF MAY 2012
                                   WP(C).No. 8107 of 2010 (K)
                         

                     MARIMMA SAMUEL, 
Vs

               STATE OF KERALA,

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Whether second marriage performed by wife when husband is missing for seven years is valid?

 On facts, it is found that Balbir Singh himself came alive

and deposed in favour of Avtar Singh that he never absconded. Avtar

Singh has established that Balbir Singh was very much alive when

Sawaranjit Kaur contracted second marriage with Avtar Singh.

Therefore, such a marriage solemnized by Sawaranjit Kaur with

Avtar Singh is patently illegal and is null and void.

Counsel appearing for Sawaranjit Kaur would further

contend that Sawaranjit Kaur was an illiterate woman. As her

husband had absconded for more than seven years she had

contracted second marriage.

Ignorance of law is no excuse. When the law lays down

that a marriage with another person during the subsistence of

marriage is null and void, Sawaranjit Kaur cannot hide herself behind the plea of illiteracy and seek for validity of the marriage.

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

FAO No. 309-M of 2003

DATED :- August 03,2015

Smt. Sawaranjit Kaur Vs Lt. Col. Avtar Singh and others

CORAM: HON’BLE MR.JUSTICE M.JEYAPAUL

HON'BLE MRS. JUSTICE RAJ RAHUL GARG

Citation: AIR 2016(NOC)176 P&H

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Madras HC:Person missing for seven years can be presumed to have died only on day after completion of seven years

The Madurai Bench of Madras High Court (HC) has ruled that a person missing for long period and not heard of for over seven years could be presumed to have died under Section 108 of Indian Evidence Act, 1872 only on the day after the completion of seven years. A Division Bench comprising Justices V.Ramasubramanian and N.Kirubakaran passed the ruling while disagreeding with a view taken by a single Judge of the HC that a Tamilnadu State Transport Corporation (TNSTC) bus conductor should be considered to have died on the date when he went missing in May 1999 for settlement of terminal benefits to his legal heirs. The bench observed that there is an inherent danger in presuming that the date from which a person went missing could be taken to be the date of death. If it is so taken, many claims that could be made by his legal heirs would become barred by time despite the fact that the very presumption of death could be raised only after seven years from the date on which he was last heard of. The Judges said Section 108 should always be read along with Section 107 of the Act. Their combined reading would make it clear that whenever a question arose as to whether a person was alive or dead and it was proved by one of the parties to the case that he was alive within 30 years, then the burden of proving his death would squarely lie on the other party.

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Whether civil court can grant declaration of civil death of person who is missing for seven years?

I have  carefully considered  the submission  made by
Mr.   Gavnekar,   learned   counsel   for   the   appellants.   Here,   it   is
necessary   to   look   into   the   provisions   of   Section   108   of   the
Evidence Act, which reads thus:
“108.  Burden  of proving  that  person  is alive
who has not been heard of for seven years.—
Provided that when the question is whether a man
is alive or dead, and it is proved that he has not
been heard of for seven years by those who would
naturally have heard of him if he had been alive,
the burden of proving that he is alive is shifted to
the person who affirms it." 
It   is   not   in   dispute   that   the   husband   of   plaintiffSulochana
went missing in the year 1997 about which report was
lodged to the Police Station concerned.  It is also not in dispute
that the period of seven year was completed in the year 2004.
And she filed a suit in the year 2006 for declaration of the civil
death of her husband.   There is no dispute about the fact that
Rajiv, husband of Sulochana went missing from 1997 and is not

traced or heard for about seven years from 1997 nor it is the case
of the appellants to the contrary. Section 108 of the Evidence Act
does not contemplate any declaration by civil court for civil death
of the person.  On the contrary, she went to the Court after seven
years for a declaration which declaration would obviously operate
upon completion of the period of seven years.  Therefore, in my
opinion,   the   date   of   decree   of   declaration   of   civil   death   is
absolutely   of   no   relevance.   Here,   it   will   be   relevant   to   read
observations of the Hon'ble apex Court in para 14 of the judgment
in the case of L.I.C. of India..vs..Anuradha; AIR 2004 SC 2070,
which are as under:
“On   the   basis   of   the   above   said   authorities,   we
unhesitatingly arrive at a conclusion which we sum
up   in   the   following   words.   The   law   as   to
presumption of death remains the same whether in
Common   Law   of   England   or   in   the   statutory
provisions contained in Sections 107 and 108 of the
Indian   Evidence   Act,   1872.   In   the   scheme   of
Evidence   Act,   though   Sections   107   and   108   are
drafted as two Sections, in effect, Section 108 is an
exception to the rule enacted in Section 107. The
human life shown to be in existence, at a given
point of time which according to Section 107 ought
to be a point within 30 years calculated backwards

from the date when the question arises, is presumed
to continue to be living. The rule is subject to a
proviso or exception as contained in Section 108. If
the persons, who would have naturally and in the
ordinary   course   of   human   affairs   heard   of   the
person in question, have not so heard of him for
seven years the presumption raised under Section
107 ceases to operate. Section 107 has the effect of
shifting the burden of proving that the person is
dead on him who affirms  the fact.  Section  108,
subject to its applicability being attracted, has the
effect of shifting the burden of proof back on the
one who asserts the fact of that person being alive.
The   presumption   raised   under   Section   108   is   a
limited presumption confined only to presuming the
factum of death of the person who's life or death is
in issue. Though it will be presumed that the person
is dead but there is no presumption as to the date
or time of death. There is no presumption as to the
facts   and   circumstances   under   which   the   person
may have died. The presumption as to death by
reference to Section 108 would arise only on lapse
of seven years and would not by applying any logic or
reasoning be permitted to be raised on expiry of 6 years
and 364 days or at any time short of it.     An      occasion
for raising the presumption would arise only when
the question is raised in a Court, Tribunal or before
    an     authority     who     is     called     upon         to

decide as to whether a person is alive or dead.
So   long   as   the   dispute   is   not   raised   before   any
forum and in any legal proceedings the occasion for
raising the presumption does not arise.”
In   the   light   of   the   above   discussion,   the   answer   to
question no.1 must be in the negative, which I do.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Second Appeal No.119/2013
Mr. Santosh Popat Chavan,

...V E R S U S...
Mrs. Sulochana Rajiv @ Raju Chavan,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:­ A. B. CHAUDHARI, J.

Date of pronouncing the judgment: 12.12.2014
Citation; 2015(5) ALLMR 604

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Court can not grant declaration of civil death of person missing for seven years in succession case

 Reference to Section 372(1)(a) may be made. This section enjoins upon the applicant to state the time of death of the deceased. Time, as contemplated herein, means the date when the deceased died. It would, thus, be seen that the death prior to filing of the application is an uncertain event not to be adjudicated or declared by the DIstrict Judge in proceedings under the Succession Act, as the District Judge exercises limited jurisdiction passed upon a death already having taken place and ascertained. The District Judge under the said jurisdiction cannot strike issue as to whether a person is dead or not if dead when dead. It is beyond his jurisdiction. A reference may also be made to Section 373 wherein it is specifically provided that Page 1061 the District Judge while exercising jurisdiction under the Succession Act has to proceed in a similar manner.

7. Thus, it would be seen that the District Judge is incompetent to make a declaration with regard to a person whether he was dead or not and further even if Section 108 of the Evidence Act is pressed into service, the only presumption that can arise is that a person may be dead but when he died cannot be ascertained. 

Patna High Court

Sunita Roy Choudhary And Ors. vs Jageshwar Choudhary And Ors. on 11 May, 2006

Equivalent citations: AIR 2006 Pat 127

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Declaration of civil death of person missing for seven years

The court concluded that the very object of the declaration was only to have the substantive relief of declaration that the Plaintiff was the only heir of her son and as such the absolute owner of the suit schedule properties which constitute the main and substantial relief and the declaration of civil death being almost merely incidental. It stated that the order of the trial Court was right. Hence, second appeal dismissed.

The relief claimed is not simplicitor for a declaration about the civil death of Ramalingam the son the Plaintiff in this case. Though the relief of declaration of the right of the Plaintiff as heir to the deceased son Ramalingam was sought for as a consequence, a reading of the case projected in the plaint would go to show that the very object of the declaration is only to have the substantive relief of declaration that the plaintiff is the only heir of her son and as such the absolute owner of the suit schedule properties which constitute the main and substantial relief and the declaration of civil death being almost merely incidental, and the language employed being the word 'consequential' does not in any manner detract from the declaration of property rights of the plaintiff being the main and substantial relief. Viewed thus, the challenge made to the nature of relief sought for and granted does not in any manner suffer from the infirmities sought to be attributed on behalf of the appellant. The challenge made on behalf of the appellant, relying upon the manner of declaration of civil death being asked for in the beginning of the relief portion cannot be given undue emphasise to non-suit the plaintiff in the present proceedings and accepting such a submission would amount to abrogating the principles of justice and fair play and allowing technicalities of form to overtake and defeat the ends of Instive for getting the real role of courts as the administrators of which, for which alone the courts do exist.

Madras High Court

Balambal vs Kannammal Alias Pazhaniammal ... on 14 October, 1996

Equivalent citations: (1997) 1 MLJ 181

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Whether court can grant succession certificate to legal heirs of person who is missing for seven years?

 According to the provision contained in Section 108 of the Evidence Act, if before any Court a question arises as to whether a person is dead or alive, the Court can legitimately draw the inference mentioned in that section if it is proved that he has not been heard of for seven years by those who would have naturally heard of him if he had been alive. In the case before us, the applicant has given evidence showing that nobody has heard about the person concerned after 1993 and the application was filed beyond seven years from the date when the missing person was last seen by the persons who would in the normal circumstances hear about him. If somebody disputes such fact and gives evidence that he has seen him within the period of seven years, in such a case, the Court dealing with the application is required to assess evidence of both the parties and arrive at a conclusion. If the assertion of an objector that the person concerned is alive or that his whereabouts was known within seven years is believed, the Court will dismiss such application; on the other hand, if on consideration of the materials on record the Court is of the view that claim of the applicant is correct and that, the person concerned was really not heard for the last seven years from the date of presentation of the application, the Court can grant relief to the applicant provided other requirements of the statute are satisfied. In a given case, for the purpose of ascertaining who the natural heirs of the deceased are, the date of death may be a vital factor. In such a case, the Court will insist upon notice of the application upon all those persons who might become natural heirs of the deceased if the death occurred at any particular time or times during the period of the said seven years and after hearing those persons, the Court will come to the conclusion whether deceased was really dead. We are quite conscious of the decisions of the Supreme Court mentioned above where Supreme Court in clear terms held that presumption mentioned in Section 108 is only the presumption of death and on the basis of that presumption, a Court cannot grant relief to a litigant if such person is required to prove exact date of death. Those cases, however, did not arise out of the proceedings under the Act we are concerned. Nevertheless, those decisions of the Apex Court virtually approve the proposition of law that a Court is entitled to come to a conclusion as to the time of death of a person or approximate time thereof on the basis of evidence placed before it even without relying upon the presumption under Section 108 of the Evidence Act and it is needless to mention that law does not require that such evidence must necessarily be documentary evidence.

Calcutta High Court

Sudarshan Shaw vs Subhas Shaw on 6 July, 2005

Equivalent citations: 2005 (3) CHN 456

Bench: B Bhattacharya, J Banerjee

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Declaration of death of person who is missing for seven years

We cannot, therefore, countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in Consumer Forum or Civil Court and evidence was adduced that the person was not heard of for a period of seven years by the wife and/or family members of the person then not only the death could be presumed but it could also be assumed that the presumed death had synchronized with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings. In order to successfully maintain the claim for benefit under the insurance policies it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant-LIC was justified in turning down the claims by pleading that the policies had lapsed and all that could be paid to the claimants was the paid-up value of the policies.

Supreme Court of India

L.I.C. Of India vs Anuradha on 26 March, 2004

Equivalent citations: II (2004) ACC 44, 2004 ACJ 1318, AIR 2004 SC 2070

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Presumption of death of person who is missing for seven years

Neither Section 108 of the Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years' absence and being unheard of having elapsed before that time. The presumption stands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death."

Supreme Court of India

Saroop Singh vs Banto & Ors on 7 October, 2005

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Whether court can grant legal heir certificate if person is missing for seven years?

It is thus seen that the said Mohammed Ismail has been missing and is not heard of for a period of more

than seven years since before the filing of this petition. Therefore, in view of the provisions of section 108

of the Evidence Act presumption about his death can be drawn. Petitioner has also filed the affidavits of

his mother, Smt. Jamila and sister Mrs. Najabul Nisha in support of the petition. It appears that the

heirship certificate is required for the purpose of obtaining the terminal dues of the said Mohemmed

Ismail. The Mumbai Port Trust authorities have informed this court the total amount payable to the said

Mohammed Ismail is Rs. 97,195/ -. The petitioner and his mother and sister being the only legal heirs of

the said Mohammed Ismail who must be presumed to have died, are entitled to get a legal heirship

certificate in their joint names for collecting of dues which were payable to the said Mohammed Ismail.

HIGH COURT OF BOMBAY

Mohammed Ali Mohamamed Ismail Khan V/S STATE

Date of Decision: 14 June 2001

Citation: 2001 LawSuit(BOM) 983

Hon'ble Judges: J A Patil

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Whether declaration can be obtained that person who is missing for seven years is dead?

It is a rule of presumption. By reason of the language applied in Section 108 of the Evidence Act, the burden to prove that such person is alive, lies on the person who affirms it, despite the person having not been heard of for 7 years by persons who would have heard of him if he were alive. The presumption of civil death or fictional death by reason of Section 108 of Evidence Act tantamounts to physical death in the eye of law. On this proposition I am supported by Parikhit v. Champa . Thus the presumption is a rule of evidence. By fiction the death is presumed in such circumstances unless otherwise proved by him who controverts it. Therefore there cannot be any question of obtaining a decree of declaration of civil death by the near relatives who have not heard of him. If some one insists that he is not dead then it is he who has to prove it. In as much as the burden lies on the person who asserts that affirmative; (Agha Mir v. Mir Mudasir . Therefore no suit lies for a declaration that a person not having been heard of for 7 years was deemed to be dead, unless the suitor seeks to establish that he is entitled to any legal character or to any right as to any property. Inasmuch as a suit for declaration can be maintained only within the scope and ambit of Section 34 of the Specific Relief Act, 1963. Section 34 does not sanction every form of declaration. It sanctions only a declaration that the plaintiff is entitled to a specific legal character or to any right as to property; Deokali v. Kedarnath (1912) 39 Cal 704. In other words the meaning of the section is that any person, who has a right to any legal character i.e. status, or to any property, may bring a declaratory action against any one who actually denies or has some interest on behalf of other to deny his title to such character or his right to any such property. In this case as observed earlier, by conduct the respondents have made payments of superannuation benefit presuming the father of the petitioner as dead. Thus the respondents are not denying the death. In order to obtain relief under Section 34 of the Specific Relief Act the plaintiff has to establish that the defendant has denied or is interested in denying the character or title of the plaintiff. The denial must be communicated to the plaintiff in order to give him cause of action. In this case no such communication of denial as such has been made with regard to any legal character or right to property by the respondents.

Calcutta High Court

Narayan Nayak vs State Bank Of India And Ors. on 7 January, 2002

Equivalent citations: (2002) IIILLJ 1013 Cal

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